As courthouse tensions rise, treatment of mentally ill suffers

While the Newtown school shooting plunged our nation into grief and soul-searching, a power struggle quietly simmering for over a year in Harris County courts has laid bare the tension between public safety and the rights of the mentally ill.

Exacerbating the problem - no surprise here - is Texas' parsimonious approach to funding mental health services for the poor.

The conflict was dramatically captured by 1st Court of Appeals Judge Evelyn Keyes, who vented during a court hearing that budget worries and turf battles between prosecutors and the Harris County Mental Health and Mental Retardation Authority - the public entity receiving tax revenues to provide therapy and medication for the indigent mentally ill - might endanger public safety.

A frustrated Keyes charged that the mental health agency was using hyper-technical arguments to stop treating someone who had committed a violent act. Because someone "forgot to check the right box," she argued, the agency wanted the court's permission to discontinue services, because it was more concerned about "its pocketbook" than the possible release of an individual who might "go out there and kill somebody."

Her remarks came as a result of two requests filed this year by the mental health agency, asking the 1st Court of Appeals to relieve it from felony court orders to continue mental health services for two defendants found not guilty by reason of insanity, both for violent offenses. Thursday, a three-judge panel denied the second of two requests; a separate panel ruled against the agency in the first case in late November.

In both cases, the mental health agency argued that the Harris County District Attorney's Office failed to provide adequate medical evidence that the defendants needed continued care. Without that evidence, the agency argued, the defendants' civil liberties would be violated by an order to submit to treatment.

The District Attorney's Office strongly disputed the assertion, and faulted the mental health agency for lack of communication. In one case, the defendant's own lawyer made no claim that his rights were violated.

Agency budget worries

The bureaucratic finger-pointing prompted Keyes and other justices hearing the case to accuse the mental health agency of dodging its responsibilities in order to save money.

Dr. Steven Schnee, the mental health agency's director, acknowledged in a phone interview Thursday that Keyes had a point: His agency sought the court action not just to protect the rights of those accused of crimes, but to protect his agency's severely limited budget. Individuals who commit violent acts may get better, and not need continued intensive supervision, he pointed out.

"When you start to focus expensive services on a person who might not need them, you are literally robbing Peter to pay Paul," Schnee said. He cited a new study showing Texas ranks dead last among states for mental health funding.

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In a perfect world, there would be no waiting list for poor people needing mental health services, he said, "but that's not the world we live in in Texas."

Court records suggest that the mental health agency's efforts to protect its resources have created friction among its attorneys and the Harris County District Attorney's Office.

In one affidavit, prosecutors said mental health officials had ordered case managers to stop communicating with prosecutors and court personnel in March 2011, and "did not respond … with information, inquiries or requests for procedural cooperation."

Prosecutors claimed the new policy had "compromised community safety and eliminated all responsibility" for mental health case managers to inform judges if a mentally ill defendant failed to comply with an order for treatment, or showed signs of mental deterioration.

Reason behind change

Schnee acknowledged the change in policy, but noted case managers were wasting hours waiting in courtrooms - precious time that could have been spent with clients. He also said the mental health authority wants its more qualified medical staff - not caseworkers - present before the agency is committed to specific responsibilities.

Communications with prosecutors were routed to more appropriate personnel, he said. "It's not that we reduced our communications," he argued.

Alex Bunin, head of the Harris County Public Defender's Office, said he understands the principle behind the mental health agency's legal fight.

As a medical provider, the agency cannot be seen as an extension of the criminal justice system. Some judges routinely ask the agency - whose mission is to provide medical services - to supervise the mentally ill defendants as if they were on probation.

The agency's position: "That's not what we do. (The judges) were putting obligations on them beyond medical treatment," Bunin said.

The facts of the two cases are strikingly different: One illustrates how mental health services can turn a person's life around; the other reveals the difficulty of supervising an uncooperative mentally ill person.

Closer look at 2 cases

In the first case, Judge Denise Collins in 2008 found an Iraq war veteran not guilty by reason of insanity on charges of stabbing his father. Collins sent the man, identified by the initials T.G. in legal documents, to a state mental hospital, and ordered continued outpatient treatment after his release. Since such orders expire annually, Collins held a December 2011 hearing to review the case and ordered that the man continue outpatient therapy.

His attorney, Michael Coulson, said his client "recognizes the benefit of therapy" and has made significant progress. Coulson was flabbergasted that the mental health agency contested the order since his client wanted to continue receiving services.

Bunin's office is involved in the second case, in which Judge Jan Krocker has overseen a defendant - identified as R.B. - since 1995. He was accused of a horrific assault in which his wife testified she was held captive over a weekend, beaten and violated with the barrel of a gun. R.B. was sent to a mental hospital; Krocker has ordered him to continue outpatient therapy since his release.

Even with supervision, R.B. has been difficult to monitor, according to a letter Krocker filed with the 1st Court of Appeals. In 2007, he was arrested in Angelina County after leading police on a high-speed chase and found to be "blatantly psychotic."

This year, R.B. demanded a jury trial over the issue of whether he should have to continue therapy; Krocker initially refused the request.

According to a court transcript, Krocker said in court: "It's my belief that the day I quit supervising him is the day he will quit taking his medicine and within a week, he will be dangerous and somebody will be hurt."

Krocker has since agreed that R.B. was entitled to a jury trial on the issue and set it for March.

Must Legislature act?

But Krocker also told the Court of Appeals that she believes state law gives judges conflicting directions about how to supervise mentally ill defendants who have been found not guilty by reason of insanity. The Legislature should clarify that judges can consider "danger to society" in ordering continued treatment.

She also argued that lawmakers should order the mental health agency to provide services "at the most intensive level" unless the defendant can prove that less stringent supervision would not endanger a community.

Her letter also revealed a deep concern about the conflict between prosecutors and mental health officials. Lawmakers, she wrote, should instruct the mental health agency to "develop procedures for communicating to appropriate parties in the criminal justice system," and that each county's commissioner's court should review the procedures.

Her suggestion makes perfect sense. But must we wait for legislative action before judges are adequately apprised of defendants they are supervising? As Newtown proved, it's hard to know when a mentally ill person will become violent. Surely, we can supervise - and treat - those who already have committed violent acts.